On March 7, 2011, Wisconsin Employment Relations Commission Examiner Peter G.
Davis
issued Findings of Fact, Conclusions of Law and Order in the above matter. The Examiner
concluded that the West Salem Education Association did not breach the duty of fair
representation
when it entered into a settlement agreement affecting Lee Radtke and accordingly that the
Commission would not assert jurisdiction over the West Salem School District for purposes
of
determining whether it violated a collective bargaining agreement as to Radtke and thereby
committed prohibited practices within the meaning of Sec. 111.70(3)(a)5, Stats.

Radtke filed a timely petition for review of the Examiner's
Orderdecisionpursuant to
Secs. 111.70(4)(a) and 111.07(5), Stats. The parties filed written
argument, the last of which was
received April 28, 2011.

No. 32696-H

Page 2

Dec. No. 32696-H

Having reviewed the record, the Commission makes and issues the following

ORDER

The Examiner's Findings of Fact, Conclusions of Law and Order are affirmed.

Given under our hands and seal at the City of Madison, Wisconsin, this 14th of June,
2011.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

James R. Scott, Chairman

Judith
Neumann, Commissioner

Commissioner Rodney G. Pasch did not participate.

Page 3

Dec. No. 32696-H

WEST SALEM SCHOOL DISTRICT

MEMORANDUM ACCOMPANYING

ORDER ON REVIEW OF EXAMINER'S
DECISION

A union breaches the duty of fair representation only if its actions are arbitrary,
discriminatory or in bad faith. Mahnke v. WERC, 66 Wis.2d, 524,
532, 225 N.W.2d 617 (1975);
Vaca v. Sipes, 386 U.S. 171, 190, 87 S. Ct. 903, 17 L. Ed.2d 842 (1967). Radtke has offered not
a hint of evidence as ofto the latter two elements. We
construe his complaint as focusing on
allegedly arbitrary actions by the Union. The focus of his claim is directed at the fact that
the Union,
acting through counsel, entered into a settlement agreement without his express approval.
That
agreement ended his employment at the West Salem School District. Radtke faces a difficult
standard in attempting to prove arbitrary action by his union representatives. He has no
absolute
right to arbitration and the fact that the Union settled his grievance "does not without more
constitute
a breach of the duty of fair representation." Mahnke, supra.

To establish that the Union's judgment call was arbitrary requires proof that "the
union's
behavior is so far outside the range of reasonableness as to be irrational." Neal v.
Newspaper
Holdings, Inc., 349 F. 3d, 363, 369 (7th Cir., 2003). Radtke falls far short
of this demanding
standard ­ if anything the Union went to great lengths to ensure that Radtke was
treated fairly.
Union representatives worked closely with Radtke for a substantial period of time counseling
him
in dealing with an employer that showed displeasure with his work. Ultimately, facing
non-renewal,
the Union negotiated a favorable departure accord which salvaged Radtke's reputation and his
ability
to obtain future employment. The decision not to pursue arbitration was made by an
experienced
labor law practitioner and independently reviewed by two other experienced members of the
labor
bar. The Union has the right to exercise independent judgment regarding the merits of
potential
claims. It did so here after careful consideration of Radtke's rights and fairly represented his
interests.

Radtke has raised a number of objections to the Examiner's decision. He contends
that the
Examiner improperly decided that the Union satisfied its duty of fair representation, because
the
Examiner would not admit evidence at hearing or post-hearing that would have addressed the
merits
of the employer's underlying reasons for non-renewing Radtke. The Examiner correctly
excluded
this evidence, since, as the Examiner explained, the Commission does not reach the merits of
the
underlying grievance if the union is found to have handled the matter consistently with its
duty of
fair representation. Mahnke, supra.
Here,regardless of the objective merits of the
employer's
action or Radtke's grievance, it is evident that the Union, after careful consideration, decided
in good
faith to settle the matter. Radtke also contends that the Union did not adequately discuss the
situation with him before agreeing to the settlement and that the Union leadership and/or
membership did not vote to accept the settlement. Assuming
arguendo that the law requires a union
to explain a settlement to a bargaining unit member, Union witnesses testified credibly that
they were
in touch with Radtke

Page 4

Dec. No. 32696-H

throughout the process of handling and settling his nonrenewal and this
said communication would
satisfy any such requirement. The record is also clear that the union had authorized an
agent,
Attorney McDougall, to negotiate a settlement on Radtke's behalf; no evidence indicates that
the
Union's constitution or bylaws required a membership vote to accept the settlement. Cf.
Florence
County, Dec. No. 32435-F (WERC, 4/11). Finally, Radtke takes issue with the Examiner's
refusal
to accept in toto two binders of chronologically ordered documents that Radtke proffered in
support
of his case; instead the Examiner chose to admit documents in the order in which they were
authenticated and offered during testimony at the hearing. The Examiner's methodology is
consistent with normal hearing procedure, as it permits all parties an opportunity to
determine, in
context of testimony, whether or not to object to the admission of any particular document.
Contrary
to Radtke's assumption, the order in which documents are received does not affect the fact
finder's
ability to follow the chronology of events when reviewing the record as a whole. It is clear
that the
Examiner provided Radtke ample opportunity to introduce pertinent documents and
testimony.
Radtke's argument is therefore without merit.